Rapist Brock Turner’s probation delema

Before retiring as a public defender, Aram James handled thousands of probation violations. In his essay, he writes that to fully evaluate Judge Persky’s sentence of Brock Turner, the public needs to account for what being on probation really means to those convicted of a crime.

Former Stanford student and potential Olympic swimmer Brock Turner, a 19-year-old freshman at the time of this incident, was convicted in March of three felonies: assault with intent to commit rape of an intoxicated or unconscious person, sexual penetration of an intoxicated person, and sexual penetration of an unconscious person. The victim was a 22-year-old female college graduate, from another university, who attended the same alcohol-fueled Stanford fraternity party as Turner.

On June 2nd, Judge Aaron Persky of the Santa Clara County Superior Court, the same judge who presided over the trial, and after reviewing and considering a very detailed probation report prepared by a senior female member of the Santa Clara County Probation Department — including statements from the victim and defendant, and numerous letters attesting to Turner’s good character — sentenced Turner to six months in the county jail, with three years of formal probation. The sentence imposed was entirely consistent with the probation officer’s recommendation. Turner had no prior record.

The perceived leniency of Persky’s sentence set off a near public lynching of both the defendant Turner and Persky. A media and social media lynching that were witnessed by the entire nation. Calls for Persky to resign or face a recall election over the case continue to this day.

What is often overlooked when the public hears about the terms of a sentence, is the gravity of probation, and how perilously close a violation could be, which triggers a lengthy prison comittment.

Before retiring as a career public defender I handled hundreds, if not thousands, of felony probation violations. I can attest to the fact that young offenders, closely supervised on felony probation, frequently fail to make it through formal probation unscathed.

The numerous potential pitfalls of formal probation are an important reason why the six-month initial county jail sentence cannot be viewed in a vacuum. To understand the severity of the punishment, one must understand the part probation plays in the overall sentencing scheme.

Defendants, who may have initially received what appears to be a light sentence for a serious crime, often end up serving some, if not all, of the maximum prison time they could have received at the time of the original sentencing.

In Turner’s case, this means if he violates probation he could well end up serving a prison sentence of three to 10 years, or more — hardly a slap on the hand.

Given the infamous cause celeb status that this case has achieved, Turner is now one of the most reviled defendants in American. He will undoubtedly be closely scrutinized on probation. Turner will be on a very short leash.

A defendant on probation is spared prison only so long as he agrees to severe limits on his freedom. The terms and conditions of probation define the quality and limits of a defendant’s freedom.

Even a minor violation — e.g., failure to report to your probation officer, even on one occasion, or a one-time violation of a no drug or alcohol condition — can result in the revocation of probation and imposition of a previously suspended prison sentence.

So what does three years of formal probation really mean in the context of the Brock Turner case? Based on the nature of Turner’s convictions, the terms and conditions of his probation are multiple, complex, restrictive and appropriately oppressive.

As an example, while on probation, Turner was ordered by Persky to participate in and complete an approved sex offender program, of not less than one year, and up to the entire three-year term of his probation. His failure to complete this program, or for that matter any other program ordered by the court, would trigger a revocation and a potential prison sentence.

As part of the sex offender program, Turner will be required to submit to polygraph exams to monitor and ensure compliance with the program.

As a further public safety measure, Turner will be required to waive his psychotherapist-patient privilege, allowing his therapist to speak directly to Turner’s probation officer re his progress or lack thereof.

Turner must register annually as a sex offender for life, and each time he changes his residence. He must reregister within a few days of moving. Failure to register in a timely manner would be both a new crime, allowing for the potential of new charges and a separate prison sentence, and a violation of his current probation.

Turner must submit to drug and alcohol testing to ensure he is complying with the terms of his probation, that he not consume alcohol or drugs, or frequent places where alcohol is sold or consumed as a primary business.

He must waive his Fourth Amendment rights, to be free of illegal and warrantless searches, and thus submit to random searches and seizure of his person, vehicle and place of residence, at any time.

Upon an alleged violation of probation, Turner, would be returned to court to face a hearing. Unlike with a new offense, there is no right to a jury trial when charged with a probation violation. A judge sitting alone hears the matter.

To find a violation the judge need only determine that the evidence proves the violation by a preponderance of the evidence, not proof beyond reasonable doubt, as required at a jury trial.

If the judge, after hearing evidence of the alleged violation, concludes that Turner has in fact violated his probation, the judge can then sentence him to the maximum sentence, he faced at the time of the original sentencing.

In my experience, judges assigned to hear probation violations are some of the most putative jurists on the bench. Need I say, that given the media attention and wave of vitriol directed at Tuner, he will be the closest watched probationer in America.

Given the dizzying probationary maze faced by Turner, it is hard to quarrel with Persky’s initial sentence.

As a society ruined by the scorch of over incarceration, it is critical that we have judges who have the discretion to encourage a rehabilitative model-first approach, while at the same time imposing severe conditions of probation that maximize public safety and protect us from truly violent predators.

The sentence in the Turner case more than adequately balances both the public safety and the rehabilitative purposes of probation.

Many of the same progressive voices who have spoken out long and passionately against over incarceration, mass incarceration, the disproportionate sentences imposed on the poor and people of color, are now doing an about face in the Turner case.

They are shouting out that more of the same cruelty and barbarism should have been handed down in the Turner case. The same mentality that has brought us to our current failed state of mass incarceration.

Instead of blindly demanding that a white male elite be sentenced to prison for his first offense, the better logic is to demand the same measure of justice and mercy, for similarly situated defendants of color and the poor. We must look to rehabilitation and restorative justice first, and harsh and unforgiving prison sentences, only where absolutely necessary.

The vengeful model of sentencing has proven over and over again to lead to recidivism, overcrowded prisons, and little or no true comfort or safety, for the victims.

We should support Persky’s rehabilitation-motivated sentence, as an extension of the progressive movement’s call, for an end to our country’s failed mass incarceration polices.

(A version of this article was originally published in the Daily Journal.)

Did Lack of Deterrence Contribute to Sexual Assault of Audrie Potts?

Did the DA’s failure to hold De Anza baseball players to the same standard of evidence and justice that is now being applied to the high school kids in the Audrie Potts’ case encourage the current high school kids to allegedly sexually assault their class mate?

One of the primary objectives of laws is to deter members in society from committing acts that harm others.  For a law to posses that force of “deterrence,” the law must be enforced consistently and equally to all people at all times.

If members in society see other members commit a certain reprehensible act without being held criminally accountable then the force of deterrence no longer exists for the latter believe that they too can perpetrate the same act[s] that the former committed without being held accountable.

I believe that this is what occurred with the boys who allegedly sexually assaulted Audrie Potts.

In 2007 a young woman was allegedly sexually assaulted at house party by several De Anza baseball players yet no charges were filed.  In 2012 Audrie Potts is allegedly sexually assaulted by several class mates at a house party.

In the 2007 case then DA Dolores Carr stated, “prosecution was impossible, largely because the victim herself had no memory of what happened to her.”

Yet in the 2012 case, Audrie Potts had no memory of what occurred either.  “I have a reputation for a night I don’t remember.”

In the 2007 case the victim went to a party where there were boys and alcohol with no adult supervision.

In the 2012/13 case the victim went to a party where there were boys and alcohol with no adult supervision.

Both victims passed out drunk in a private room unable to consent to or deny sexual acts.

Post party, both victims adamantly assert that they did not consent to sex with multiple people.

The similarities between the two cases are striking, yet with one major difference, in the 2007 case no charges were filed yet in the 2012/13 case charges have been filed.

Regarding the 2007 case, DA Dolores Carr would go on to state, “I can’t make up evidence.” 

In most people’s minds, suppressing evidence, that is not obtaining all of the facts when available in order to most fully portray the truthful events is actually making up evidence, for the act of suppressing evidence has the affect of distorting the truth which has the same affect of making up evidence both of which pervert justice.

In the 2007 case the DA went out of her way to minimize the evidence against the suspects.

Lab supervisor Lynne Burley, who works for the DA, testified in the deposition that testing ceased after somebody from the DA’s office notified her that ‘no further testing was needed,” the Mercury reported.’

“The story quoted Sheriff Smith as saying she was disappointed that the DA had shut down the probe. Smith said it was an ‘inherent conflict of interest’ for the crime lab to be part of the DA’s office, saying, ‘We’re the investigators, they’re the prosecutors.’

In the 2007 case, female soccer players came to the rescue of the victim and took her to a hospital for treatment.

After Jeff Rosen replaced Dolores Carr as DA he reopened the case and concluded that “the investigation found that the suspects had sex with an intoxicated girl while other men watched and that one man tried to keep others from coming into the bedroom.”

By using force to keep the soccer players from coming into the room where the victim was being sexually assaulted would constitute, “False Imprisonment” a violation of P.C. 236.  Additionally, the act to prevent others from seeing what you’re doing to someone else demonstrates that the person knew what he was doing was wrong and therefore possessed the guilty mind, “Mens rea,” required to convict someone of a crime.

Had Attorney General Jerry Brown,  District Attorneys Dolores Carr and Jeff Rosen held the De Anza baseball players to the same standard of evidence and justice that Jeff Rosen is applying now to the high school kids who allegedly sexually assaulted Audrie Potts perhaps the high school kids would have been deterred from committing the same act as the De Anza baseball players and Audrie Potts would be alive today.

Based upon the evidence and the similarities between the two cases DA Jeff Rosen has denied equal justice of the law to the De Anza victim.

Did Scott Righetti’s relationship to San Francisco Giants Pitching Coach Dave Righetti influence the DA’s office not to pursue charges?

 

LINKS:

Audrie Pott’s Parents Speak Out About Daughter’s Assault, Suicide,  Victims family posted on FB Friday that the male teens who allegedly attacked her tried to cover up their actions

http://www.nbcbayarea.com/news/local/Audrie-Potts-Parents-to-Speak-Out-About-Daughters-Assault-Suicide-203013581.html

http://californiawatch.org/dailyreport/elections-near-sexual-assault-case-re-enters-headlines-2197

http://abcnews.go.com/Video/playerIndex?id=7770924

http://sanfrancisco.cbslocal.com/2011/10/14/da-declines-to-file-charges-in-de-anza-baseball-team-rape-case/

The jury in the civil suit brought by the De Anza victim found that the two remaining defendants were not liable, but that they, jury, would have held other defendants liable had they remained apart of the lawsuit.

“It was exactly the wrong guys in my mind,” said juror Courtney Ridings, a schoolteacher. ‘We were very angry we were left with these two.’  Juror No. 3, a 47-year-old San Jose widow, agreed.  ‘If there had been other defendants left in the case — and it was a travesty there weren’t — this verdict would have looked a lot different,’ she said.

http://www.mercurynews.com/crime-courts/ci_17519573

http://www.orovillemr.com/ci_17437279?source=most_viewed

http://www.mercurynews.com/top-stories/ci_17793153

D.A., city failed in naked cop case

Newspaper RacksBy now you know the story about the naked Menlo Park police detective who was arrested in Sunnyvale motel room with a prostitute wearing a catsuit.

When I heard about it, I had a good laugh like everybody else. But upon reflection, this story is deeply troubling because two parties — Santa Clara County District Attorney Jeff Rosen and the Menlo Park city Council — didn’t do their jobs, and as a result, this detective is back on the job.

First, the D.A.’s office should have prosecuted this Detective, Jeff Vazquez. The excuse offered by District Attorney Rob Baker, who supervised the prosecution, was that on the day of the trial one of the arresting officers from Sunnyvale couldn’t testify because he had to attend to his ailing wife.

Case Closed

Baker could have refiled the charges and scheduled trial on a day when the officer could have testified. Or he could have tried the case with the testimony of other officers who were involved in the arrest.

But he said a misdemeanor case isn’t worth the effort. If the naked cop had been convicted of a misdemeanor his career would have ended right then.

D.A. Rosen was elected two years on the promise that he would end the corruption of his predecessor, Dolores Carr. Rosen didn’t live up to that promise in this case. It looks too much like a case of professional courtesy, when fellow cops find a way to help a colleague who gets into trouble.

But I am also concerned that Menlo Park, after firing Vasquez, had to allow him to return to work because the city uses binding arbitration to settle disputes.

The problem with binding arbitration is that the arbiters, while supposedly neutral, usually side with the unions, even in the most egregious of cases. And the naked cop case is evidence of that.

Abandoned Arbitration

Most cities in California that had binding arbitration have abandoned it. One of the last was Palo Alto, where 63% of voters agreed to repeal binding arbitration in 2011.

Menlo Park City Council should have ended binding arbitration years ago when other cities were dropping. I suspect that didn’t happen because most Menlo Park council member over the years have been union supporters.

The other problem with binding arbitration is that it takes important budget decisions out of the hands of city council members. If the unions disagree with the city manager over how much workers are paid, the final decision goes to the arbiter. And such decisions force cities to spend more money, which raises taxes.

That was one of the main arguments Palo Alto leaders gave in their successful campaign to convince voters to end binding arbitration.

But even with the arbiter’s ruling in favor of the naked cop, the city should have rejected the decision and taken its chances in court.

The union would argue breach of contract but, what jury would think it’s a good idea to have a naked cop return to the police force?

Rehiring the naked cop has sent a terrible message to other Menlo Park officers that anything goes– that they can break the law and not worry about the consequences.

It makes the police department look like a joke. And that isn’t fair to the majority of officers who to take their jobs seriously and obey the law.

And what is Vasquez going to do? He was assigned to investigate sexual assaults before his arrest. What rape victim would want to be interviewed by him? Why would a victim of human trafficking confide in him or any Menlo Park police officer?

If Vasquez arrests anybody, and is called to testify against them, jurors wouldn’t see him as a credible witness. So he’s useless as a cop. And he makes $160,000 a year including benefits. What now?

Council should come clean and explain how the naked cop got his job back. Council should institute a policy of informing the public anytime of police officer is arrested, no matter whether the arrest occurs in Menlo Park or another city. And council should defy the union bosses and repeal binding arbitration like so many of the cities have.

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DA Jeff Rosen Victimizes Victims of Crime

As reported earlier today, Santa Clara County District Attorney Jeff Rosen’s right hand man, Jay Boyarsky Jay Boyarsky has been found to have engaged in misconduct by 6th District Court of Appeal.  “This is not a case in which the prosecutor, (engaged in a few minor incidents of improper conduct), rather the prosecutor engaged in a pervasive pattern of inappropriate questions, comment and argument throughout the entire trial,” Judge Conrad Rushing writing on behalf of the court.

CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT H035423 (Santa Clara County Super. Ct. No. 210813)

 

Jeff Rosen CheaterThis type of behavior of acting above the law is not unusual for Jeff Rosen and his office for Jeff Rosen and Jay Boyarsky actually support the violations of the law and the Constitutions of the United States of America, so long as the people who are violating the laws and the Constitutions are fellow law enforcement officers and District Attorneys and doing so against the poor and defenseless of our society.

In 2008 Tony Ciampi was falsely arrested and tortured by Palo Alto Police Officer Kelly Burger with electricity from a taser gun requiring Burger and his fellow officers, April Wagner, Manuel Temores, Natasha Powers, Brian Furtado, Lynne Johnson, Chief Dennis Burns and others to cover up Burger’s crime by editing and falsifying four audio/video recordings and two taser gun memory devices and to simultaneously incriminate Ciampi of a crime by using those falsified videos.

FORENSIC EXPERT GREGG STUTCHMAN’S ANALYSIS OF THE TASER VIDEOS

Stutchman

Jeff Rosen knows that his District Attorney’s office, (John Burke, Christopher Corpora, Mario Soto, DA Dolores Carr, DDA Debra Medved and former DA Javier Alcala) conspired with the Palo Alto police to incriminate Tony Ciampi of a crime by using falsified evidence.

In 2007 Palo Alto Police Chief Dennis Burns demonstrates the conflict of interest and nepotism  between the DA and the Police in his statement about Boyarsky that he, “has been a real partner with all the police agencies in our area,” both as a leader and “as a great teacher” for police officers, covering “not just the law but the politics and the system.  He had no agenda — other than just trying to do the right thing.  I’m pretty sad he’s leaving, both personally and professionally.  But the good news is he’s not going very far.” 

How do we know that Jeff Rosen knows that the videos have been falsified, because his own crime lab verified that a minimum of 4 SECONDS of audio/video footage has been removed, (edited), from Ofc. Temores’ Taser Video.

Corpora 1

Corpora 3

 

How do we know that Jeff Rosen knows that the videos have been falsified, because the three scenes below are missing from Ofc. Temores’ MAV recording and Jeff Rosen cannot scientifically disprove this fact.

rosen 17

 

How do we know that Jeff Rosen knows that the videos have been falsified, because the dialog, “You’re not making it easy,” has been intentionally removed from Ofc. Burger’s MAV recording and Jeff Rosen cannot scientifically disprove this fact.

Missing Dialog 1

 

MAV 2 MISSING AUDIO

How do we know that Jeff Rosen knows that the videos have been falsified, because the Palo Alto Police have admitted that there were two taser guns used to fire four taser probes during the incident and that they intentionally destroyed two of the taser probes in order to conceal the fact that the second taser gun firing has been removed from, (edited out of), the MAV videos, the Taser videos and the Taser gun memory device, (the data port).

taser probe 2

 Taser Probe 2

 Taser Probe

 

 

crime sceneHow do we know that Jeff Rosen refuses to hold police officers accountable when they violate the law, we know because Jeff Rosen knows that Ofc. Burger committed perjury during a court hearing and Jeff Rosen refuses to prosecute Ofc. Burger for his crime.

Burgers taser perjury

How do we know that Jeff Rosen knows that the Palo Alto Police violated the law, because the Palo Alto Police have actually admitted to violating the law yet Jeff Rosen refuses to prosecute the culpable officers demonstrating that Jeff Rosen truly does not believe in the law or protecting citizens who are a victim of a crime so long as it is the police committing the crime and Jeff believes that the citizen does not deserve the protection of the law.

rosen 13

By applying the law arbitrarily according to his own subjective dictates when he, Jeff Rosen, decides he wants to, Jeff Rosen has declared that he himself is the law verifying that the “Rule of Law” does not exist.

By concealing the crimes of the Palo Alto Police, a violation of Calif. P.C. 32, Jeff Rosen has actually revealed himself as a violator of the very laws, ethics and morality that he is supposed to enforce.

 “Do not deny justice to your poor people in their lawsuits.  Have nothing to do with a false charge and do not put an innocent or honest person to death, for I will not acquit the guilty.  “Do not accept a bribe, for a bribe blinds those who see and twists the words of the innocent.  “Do not oppress a foreigner; you yourselves know how it feels to be foreigners, because you were foreigners in Egypt.”  Exodus 23:6-9

Rosen 4

District Attorney Jeff Rosen is a liar, a deceiver, a hypocrite and a traitor to the

rosen 3American People and the Constitutions and laws of the State of California and UnitedDolores Carr States of America.  Jeff Rosen criticized DA Dolores Carr so that he could get elected DA, then he turns around and perpetuates the crimes of Dolores Carr.

Jeff Rosen has revealed himself as just another shrewd politician.

 Jim Kouri,, vice president of the National Assn. of Chiefs of Police, has assembled a group of traits that define psychopathic personalities — like serial killers — and has discovered that these trait also apply to many of today’s politicians.

“While many political leaders will deny the assessment regarding their similarities with serial killers and other career criminals, it is part of a psychopathic profile that may be used in assessing the behaviors of many officials and lawmakers at all levels of government.”      http://www.viewzone.com/politicians.html

CLICK HERE to see the evidence of the crimes of Palo Alto Police Chief Dennis Burns and his subordinate officers.

CLICK HERE to see the evidence of that verifies that the Santa Clara County District Attorney’s Office and Crime Lab conspired with the Palo Alto Police.

Related Stories:

http://paloaltofreepress.com/chief-dennis-burns-lies-to-federal-judge/

http://paloaltofreepress.com/crime-lab-cover-up/

 

San Francisco Crime Lab Debacle Signals Need to Challenge Prosecutor’s Junk Science

A compromised crime lab might be more endemic than an exception, and according to defense attorney Aram James, points to a larger flaw in the mechanics of the criminal justice system.

San Francisco Crime Lab Debacle Signals Need to Challenge Prosecutor’s Junk Science

Recent revelations of a compromised crime lab in San Francisco has brought scrutiny and criticism to the San Francisco Police Department and District Attorney’s office. Investigations by oversight agencies as well as the media have shown that the lab had mixed up DNA sample, concealed criticisms from the American Society of Crime Lab Directors, and had insufficient security – with doors to the facility being left open, leaving DNA potentially exposed to contamination, opening up challenges to the evidentiary chain of custody and a variety of other attacks on its scientific reliability.

But while all attention might be focused on the inadequacies of one crime lab, the problems found at the San Francisco lab should be prompting counties and cities across the country to examine their own crime labs, and challenge a more fundamental flaw in our system – the acceptance of prosecutors’ “science” as truth.

As a former public defender of 25 years, and having observed criminal cases across the country, I strongly suspect that crimes labs all over this state and country are equally as bad, if not worse, than the San Francisco Crime Lab, as depicted in the recent San Francisco Weekly’s cover story entitled “Missing Links.”

The exposé should be a call to action by the community at large impacted by the criminal justice system to become more aware about how the state/prosecution routinely attempts to get over on our communities with junk science — from phony gang experts, to pseudo drug experts, to drugs that haven’t been tested or adequately challenged by the defense, to bad DNA results.

What the public often does not see is the process leading up to the presentation of evidence before it hits the courtroom, and the surprising non-existent standards required. A rookie cop, just out of the police academy, instantly becomes the expert of choice, on the cheap, for the convenience of the District Attorney and courts on issues as wide-ranging as what constitutes possession for sale, to what constitutes usable quantity, to who is a gang member versus someone who simply wears the youth fashions of the day.

It’s not just the prosecution and police that have gotten over on us. I put equal blame and responsibility for this mess of a criminal justice system on the often impotent, by choice, defense bar for frequently and systemically failing to take on this bad/junk/fraudulent science and/or for failing to call defense experts to rebut the steady stream of junk science put on by the prosecution in this county, state, and country.

We should never have our community members stipulate (agree to) to drug results and or any other forms of so-called scientific evidence. A community that cares in the proper defense of a defendant, and the attorneys that represent them, need to force the prosecution to prove every link in the chain of the evidence (including the reliability and integrity of their so-called infallible science), if they want to convict our clients.

Too often (in fact almost without exception), I have seen defense attorneys stipulate that the substance the police have seized from our clients’ person, cars, homes, etc., is the drug or contraband the police claim it is — without putting the prosecution and their labs through their hoops and forcing the state to prove — through good science — that the contraband is what they claim it is.

Part of the mentality I have observed — up close and personal in the courtroom as a public defender — is defense attorneys stipulating away their clients’ rights for their (the attorney’s) convenience. Or they simply do not want to be perceived as rocking the boat in the courtroom — all to the extreme detriment of the client and their families.

The public defender administrators who allow their line attorneys to commit this crime against our communities basic due process rights must be called to account.

You can be sure if it were the loved ones of these attorneys/administrators facing the same criminal injustice system there would be no stipulations to the state’s tests/evidence. And you can be sure that no expense would be spared to fight off the prosecution’s case/evidence and routine practice of overcharging our clients in hopes of extracting a forced plea bargain.

Our communities will accept nothing less than the same measure of due process and equal protection that the lawyers would demand if it were their life and liberty on the line.

Going forward, communities and advocates interested in bringing integrity to the criminal justice system must insist on touring our crime labs with our public servants/district attorneys so we can become conversant with the language of their legitimate scientific evidence. But we must be equally aware of where the system/crime labs have failed us, and as a result, imprisoned us unjustly. Knowledge is power, and now it is incumbent on us to obtain that knowledge.

As the court system collapses under its own weight, exacerbated by a lack of resources, we need to put the pressure on by forcing the prosecution to prove their cases, no matter how expensive and system draining the tests/labs and trials are to the state.

If the community demands the tests (and demands that our attorneys demand the tests), the experts, and all the other rights that our clients are rightfully entitled to, we will start to see that the system will grudgingly give our clients the justice they deserve. Not because the system wants to, but because once we know our rights, they literally can no longer afford to prosecute our clients for the charges and prison sentences we have for too long assumed and taken for granted that we could not challenge.

Now that the rabbit is out of the hat, it’s time we take back our criminal justice system.

Aram James is a retired Santa Clara County Public Defender, and co-founder of Silicon Valley De-Bug’s Albert Cobarrubias Justice Project. Image from Silicon Valley De-Bug.

http://bit.ly/ihy9KK